Angry New Yorker

Wednesday, March 30, 2005
New York Shoots Itself In the Foot Again

We'll have more on this tomorrow:
New York State Telecommuter Ruling May Have Wide Implications
Associated Press
March 29, 2005 1:04 p.m.

ALBANY, N.Y. -- A telecommuter who lives out of state while working by computer for a New York employer must pay New York tax on his full income, the state's highest court ruled Tuesday in a case that could have wide implications in the growing practice.

The Court of Appeals ruled that computer programmer Thomas Huckaby who lives in Nashville, Tenn., owed New York income tax for his full salary, not just the time he spent working at the New York offices of the union for which he worked.

Mr. Huckaby paid tax on about 25% of his income over two years for the time he spent working in New York state. But the court upheld a state tax department ruling that all his income should be taxed. That amounts to $4,387 plus interest. However, the ruling could lead to much greater income for the state as it is applied to the growing field of telecommuting.
The decision in question the Matter of Thomas L. Huckaby v. New York
State Division of Tax Appeals, Tax Appeals Tribunal, et al., is
available here:

Sunday, March 27, 2005
The Nanny State Marches On - Booster Seats for All!!

Most of us here at Angry New Yorker are of sufficient age that we can remember when the first seat belt laws came into effect. Even back then we recognized these laws as the first push at the top of the slippery slope toward a final nanny state where insurance companies ruled everything by proscribing what we can do. [Ed. note - while we're at it, can we please stop naming laws after people? E.g., Kendra's Law, Megan's Law, Sarbanes-Oxley, etc. It's both tiresome, unnecessary, and frankly distressing, as it's much easier to pass a law billed as "cute little young tragically dead child's law" than the same law under it's descriptive title. Back to our topic already in progress....]
It isn't that wearing seat belts or helmets aren't a good idea -- we know enough physics to understand it's the change in momentum impulse when you decelerate that kills you unless a seat belt or air bag operates to stretch out that delta t by a few life-saving milliseconds to lower the peak applied forces. So it isn't that we don't know the science. But when the state gets into the business of mandating all things good and fine for your health, then there is truly no natural stopping point; or if there is we haven't seen it yet.

Flash forward to 2005 where we're well on the way to the creation of the dreaded great nanny state. For as we last noted back in Nov. 2004, here, after our sterling NYS legislature passed a law requiring kids under 14 to wear a helmet when skateboarding, the present trend means one day in the future it's not farfetched that our hand-wringing legislature would pass "a law requiring everyone just walking down the street to wear a helmet . . . ." Laugh if you will... we do in fact hope the joke is not on us, however.

In service of the great and holy cause of "protecting our children" the New York State legislature -- that self-same legislative body which is currently seeking to add billions of expenditures to Gov. Pataki's already bloated $105+ billion dollar budget, that hasn't passed a budget on time in 21 years, that can't tame out-of-control Medicare spending bankrupting counties and throttling our competitiveness, that can't accomplish anything of meaningful progress in Albany apparently, except adding more zeroes to the payouts given to unions -- still has found time to care about our children in passing S.217 to amend "subdivision 5 of section 1229-c of the vehicle and traffic law" [NY VTL 1229-C - Operation of vehicles with safety seats and safety belts] to mandate that children over four and up to seven years of age, unless over 4'9" in height or over 80 pounds, must be in a specialy designed "booster" seat [while children less than four are still required to be in child safety seats].

I don't know about most kids at age 7, but I know it would have been very difficult to keep me in a "booster seat" at seven. At that age I'd frequently sit on phone books, while seat belted in the front seat, and read maps as our navigator on family trips -- but today I couldn't even do thatin states that prevent kids from sitting in the front.

As justification for this law the NYS sponsors note:
Information from the National Highway Traffic Safety Adminstration reports that in 2002, one-half of children ages 14 years and younger fatally injured in traffic accidents were completely unrestrained. In addition to this problem, children also face greater risk of serious injury when restrained in safety belts designed for larger persons rather than appropriate child safety seats. To address these concerns, New York has enacted Chapter 509 of the Laws of 2004 which will require, starting March 27, 2005, that children age four or older, but less than seven years of age, be placed in an appropriate child restraint system (booster seat). Under this new law any such child who is 4' 9" in height may instead be secured with the vehicle's safety belt, recognizing that their size makes use of the regular safety belt appropriate.

How severe is this "greater risk of serious injury"? The NHTSA notes in a Traffic Tech memo, Number 253, Aug. 2001, available here, that "the occupant fatality rate for children between the ages of 5 and 9 has declined 10.6 percent in the last twenty years" and in 1999 "272 . . . fatally injured children were unrestrained . . . ."
Increasing Booster Seat Use for 4- to 8-Year-Old Children - October 2002 - Cover
So, would using a booster seat mean those 272 deaths could have been prevented? No. And let's remember that in 2002, the NHTSA states that 43,005 people were killed in car accidents in 2002. meaning that any way you slice it, child deaths from car accidents are a very small slice of total car fatalities. Further, the NHTSA's 2002 report "A National Strategy: Increasing Booster Seat Use for
4-to8-Year-Old Children," October 2002, available here, recognizes in its Executive Summary, that:

Under Section 14(i) of the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act, the Secretary of Transportation is required to, "…develop [a] 5 year strategic plan to reduce deaths and injuries caused by failure to use the appropriate booster seat in the 4 to 8 year old age group by 25 percent." While this is a highly desirable goal, the National Highway Traffic Safety Administration's (NHTSA) research shows that a 25 percent reduction in deaths and injuries would not be attainable through the implementation of a program designed solely to increase proper use of belt-positioning booster seats. This view is borne out by the following data:

  • Virtually 100 percent restraint use by booster seat age children would be necessary to achieve a 25 percent reduction in total fatalities for this age group; and,
  • Only about 21 percent of 4- to 8-year-old children are reported as unrestrained in non-fatal crashes. Therefore, the number of unrestrained children is insufficient to produce a 25 percent reduction in the number of injured children, even if all were restrained.

The Agency's research also shows that the lack of any restraint use in a motor vehicle is the greatest risk to 4- to 8-year-old passengers. In 2000, almost half of the 4- to 8-year-old passengers killed in crashes were reported as totally unrestrained. In addition to the high number of fatalities, thousands of children were seriously injured in crashes because they were unrestrained.

Look, seat belts are a good idea for everyone; and smaller kids should be in child safety seats; but what kills the overwhelming majority of adults and kids alike in accidents is not having any restraint system. And the final question is how far does the state step into to mandate certain practices and "safety" equipment for either children or adults?

I wear my seltbelt everyday. But I don't do it because there's a law requiring me to do it. I snap in because the laws of physics will kill you in a crash in 1/10 of a second. Maybe if more people understood the fundamental Newtonian formula of F=MA, or more relevant to a car accident, the formula's reformulation as:
Force * (change in time) = Mass & (change in velocity)
In layman's terms, in an accident your change in velocity is extreme (from x mph to zero) in a very small amount of time. Your mass stays constant during this period, so what has to be huge to balance the equation is the force applied to stop your body in the extremely short time where you impact the steering wheel or dashboard. Add a nylon seat belt to the equation and the belt's stretching force increases the length in time by two orders of magnitude of more, which translates into much lower force applied over that time to bring your body to rest. See? Physics is not only fun, it can save your life.

Tuesday, March 22, 2005
Ending Gerrymandering

The brain trust at Angry New Yorker views gerrymandering, as widely used to carve out "safe" districts for one party or the other, to be perhaps the single most destructive device to democracy known. While we're strongly republican/conservative, we believe every election should be fiercely contested. Yet, in the last election nearly fully 25% of state-wide elections listed only one person on the ballot. That's not an election in our book.

To address this electoral abomination, New York State Assemblyman Michael Gianaris recently introduced a bill, which if enacted, would enable a committee of 8 people (4 chosen by the 4 legislative leaders, and 4 chosen by the Chief Judge, AG, and Comptroller) to select a pool of 40 individuals with geographic distributional requirements and requirements that certain numbers of Democrats, Republicans, and non-major party/independent voters be included. The Brennan Center for Justice described the proposal, thus:
From that pool, each of the 4 legislative leaders selects 2 members of a reapportionment commission. Those 8 members then select 3 members from the original pool. No more than 4 members can be enrolled in any one party. That reapportionment commission then draws the district lines for both state and congressional offices. The bill provides several specific criteria to be followed in that drafting process, including a preference for competitive districts.
The legislature must vote on the plan that is produced, and if it does not pass, the commission can do another version. If the third plan drawn by the commission does not pass, the Legislature can pass its own plan. But the Legislature's plan must serve the bill's criteria. If the plan ends up in court (which the bill virtually guarantees), then the bill instructs the Court of Appeals to select that plan which best serves the stated criteria.
In sum, this bill is not perfect, but it would be a tremendous step forward in bringing a measure of independence and rationality to the reapportionment process. It does by legislation what really should be done by constitutional amendment, but the chances of its passage are thus much greater. While it preserves significant control for the Legislature, it also would likely produce a Court of Appeals decision that would select one of the commission's plans over that drawn by the Legislature itself. For these reasons, the Brennan Center and several other good government organizations, including the Citizens Union, strongly support the bill.
We likewise support the bill as a first step to bring elections back to the intended goals -- not to provide a rubber-stamp on sinecures for partisans, but as direct referendums to decide our representatives.

Write your Assembly person and tell them to support the bill. Don't know who your assembly representative is? Don't worry. Even policy wonks like us often forget. Look your's up here.

Sunday, March 20, 2005
Even The Left Starts Second-Guessing Its Own

We didn't comment on the ridiculous imolation ongoing within Harvard's faculty, because, well, others have dissected the Summers brou-haha with more depth, aplomb and perspicacity than we can muster on the topic, which basically boils down to a parody of those reality "when animals go bad and attack" tv shows, only here under the marketing slogan of "When Leftists Attack and Eat Their Own."

But when Dave Winer, noted technologist, former Harvard fellow, and ultra-democrat supporter, with whom members of the Angry New Yorker Brain Trust crossed swords during the last election season, suddenly realizes that, hey, white males aren't all evil and should be supported against the acid dripping destructiveness of uber-feminist commandos, well, it's indicative something is definitely rotten in the Leftist state of Denmark -- to mangle metaphors. He noted on his blog Friday that:
Yesterday I picked up a funny graphic from Jonathon Delacour's site, with a picture of Alfred E Neuman, next to a slogan "White, male and damn proud of it!" I like to laugh at myself, so why not laugh at my gender too. Almost anything with the What Me Worry kid is funny. Let's have a good laugh, then settle down, and do some positive PR for our gender and our race. Sure, lots of terrible people were white and male, but so were a lot of great people, heroes, martyrs. People who cured diseases, and stood up to tyrants. Artists, teachers, comedians, people who served as role models for boys and men, even some sons of feminist women (like me, for example). I know some women are offended by this, I've heard from them, but this isn't about you, it's about us. So I'm going to start running an occasional positive image of white maleness on Scripting News, for no other reason that to help white men, like myself, feel like we have permission to do good things and serve as role models for young men, and for ourselves.
Gee, what a concept; that "white men . . . have permission to do good things and serve as role models for young men. . . ." That it's come to this demonstrates more effectively how insanely off track the radical feminist train has traveled than anything else we can think of now.

Saturday, March 19, 2005
The Moonbat Contingent Speaks Up

Harsh title? Well, those folks who took to the streets this weekend to protest the second anniversary of the Iraq war are certainly entitled -- after all it's their First Amendment free speech right. Right? Up to a point, absolutely.
However, over the past few years we've been frankly amazed at how many people have utterly no idea -- other than a weak, diluted, populist "it's a free country" understanding of what the First Amendment speech clause protects, what it means, and what "rights" it provides against governmental action. More commonly you'll find people saying "I have a right to say such & such", or "XYZ is being punishing for speaking out", or crying "censorship!" when the underlying issue has no bearing on areas the first amendment covers.

As a result, we hope to do a very preliminary "first amendment" primer compilation here soon, in an effort to educate those New Yorkers who the public school system has failed.

Wednesday, March 16, 2005
In New York Temporary Means Virtually Permanent; and Taxes Means Give Me All of It

In New York we've learned from painful experience that whenever anything is labeled "termporary" there's a better than 90% chance it will be temporary only in the sense that the universe itself is "temporary" -- that is there's some finite period to its existence. I remember driving by Queens College for upwards of 25 years, and noticing the "temporary" classrooms set up in the '70's using Quonsehut-like barrick buildings. They only came down a perhaps five years ago.
And now, as E.J. McMahon notes, our sterling state Legislature is likely going to make a variety of "temporary taxes" embedded fixtures in the fiscal landscape. Let these *!)@#* know that this kind of nonsense is not why they're in Albany.
N.Y.'s Road to Ruin

March 16, 2005 -- ONCE the Legislature adopted a "temporary" personal-income-tax increase in 2003, it was only a matter of time before someone in Albany moved to make the tax hike permanent.

Sure enough, the heavy-spending budget resolution approved by the state Assembly this week includes an open-ended extension of the state's 7.7 percent flat rate on taxpayers with incomes over $500,000. The proposal will now be on the table in budget negotiations between Assembly Democrats and Senate Republicans — who have their own big spending appetites, and who supported the temporary rate hike just two years ago.

If enacted, this would be New York's first permanent increase in the income-tax rate in more than 30 years. And it would send a troubling signal to investors and business decision-makers that the era of pro-growth tax reduction is over in the Empire State.

* * *

Not so long ago, the relationship between taxes and economic growth was better understood by Democrats as well as Republicans in Albany. In fact, over the past quarter-century, the greatest reductions in state income-tax rates have been signed into law by Democratic governors.

Hugh Carey cut the top rate from 15 percent to 10 percent during his last term in office. And Mario Cuomo saw the top rate decline further, to 7.875 percent. (Cuomo reneged on further, scheduled cuts.)

Pataki's 1995 tax-cut package brought the top rate down to 6.85 percent — lowest since the '50s. But even at that level, the vast majority of middle- and upper-income New Yorkers were subject to the heaviest state income-tax burden in the region.

And for New York City residents, the combined state and local income tax rate now tops out at over 12 percent — highest in the country.

Because many small, closely held firms and partnerships are subject to the state personal income tax rather than the corporate tax, what the Assembly is proposing is not just a higher permanent rate on individuals but a tax hike for employers.

The deductibility of state and local taxes on federal returns is often cited as an argument in favor of raising New York's income tax. But deductibility isn't what it used to be.

Thirty years ago, when the Empire State's top rate was 15 percent, the top federal rate was 70 percent. This meant the effective state-tax bite on the highest-earning households was only 4.5 percent. Today, with the federal top rate set at 35 percent, the post-deductibility cost of a 7.7 percent state rate is 5 percent.

Plus, many high-income New Yorkers are subject either to the Alternative Minimum Tax, which doesn't permit deductions, or to a cap on itemized deductions. Either way, the deduction is worth the least to those who send the most to Albany. (And deductibility itself may not survive the next round of tax reform in Washington.)

And it's not as if some of New York's wealthiest taxpayers lack any other reasons to leave. The phase-out of the federal estate tax is having the effect of making New York's state "death tax" exceptionally high. Lawyers and financial planners are already advising their New York clients to move to states such as Florida and South Carolina, which have no estate tax at all.

Even putting aside the economic considerations, the Empire State is dangerously over-reliant on its personal income from high-income households. In 2001, for example, state residents with incomes above $500,000 represented barely 1 percent of taxpayers but paid more than 30 percent of the taxes.

The downside of depending so heavily on such a small number of taxpayers should be obvious: It means that when the wealthiest New Yorkers have a bad year, the entire state suffers inordinate fiscal stress. This is precisely what happened between tax years 2000 and 2002 — when all of the decline in state income-tax revenues was concentrated in high-income households.

Financing popular programs with higher taxes on the wealthiest New Yorkers may be smart politics. But shifting even more of New York's steadily rising public sector burden to roughly 65,000 footloose tax filers with volatile incomes would make for truly dumb policy.

I think that about says it all, no?

Tuesday, March 15, 2005
Justice Scalia Speaks On His Originalist View of Constitutional Interpretation

I'm a big fan of U.S. Supreme Court Associate Justice Antonin Scalia. In fact, he's my favorite Supreme Court Justice, because his view of constitutional interpretation via "originalism" is very flexible - as it leaves the political process to run its course whenever possible, rather than freezing issues by "constitutionalizing" wide areas. Despite the fact that many legal minds and most law school students I've run into view Scalia as an extremist on the right-wing, I dissent with their view.

Watch a recent speech by Justice Scalia detailing his view of constitutional interpretation here in a 58 minute speech - as RealMedia.

Monday, March 14, 2005
Always More Money to Move Around NYC

New, and of course higher, tolls went into affect today on the cities bridges and tunnels. The anger is palpable, for as the New York Times notes "[t]hey unleashed a tirade of complaints: higher tolls (the second increase in two years), exorbitant insurance (among the highest in the nation), expensive parking (as much as $30 a day), and rising gas prices ($2 and up). The squeeze, they said, just never seems to stop."

Indeed, it never does stop. The MTA should be immediately taken over and investigated from top to bottom. It's painfully clear it is both unaccountable and unaccounted. In fact, the MTA was created primarily for both these purposes by Robert Moses to provide him with a source of revenue and the means of ramming through projects. The MTA webpage say, here, it is:

"A public-benefit corporation chartered by New York State in 1965, the MTA is governed by a 17-person Board. Members are nominated by the Governor, with some recommended by New York City's mayor and the county executives of Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland, and Putnam counties, with the members representing the latter four casting one collective vote. The Board also has six rotating non-voting seats held by representatives of organized labor and the Permanent Citizens Advisory Committee (PCAC), which serves as a voice for users of MTA transit and commuter facilities. All Board members are confirmed by the New York State Senate."
Well doesn't this just inspire confidence. Six non-voting seats serve "as a voice for the users of MTA transit and commuter facilities" -- in other words "sit there, listen and shut up because we're not interested in what you say, because YOU HAVE NO VOTE in what we do." Nice.

The New York Times details today's price increases, ranging from a 50 cent hike for the Throgs Neck Bridge, the Midtown Tunnel, and the Whitestone Bridge, bringing a one-way toll on these crossings to $4.50. And the Verranzo-Narrows Bridge popped from $8 to $9 (one-way). That's a stiff nut.

I've also thought it was unconscionable to have no free crossing between boros of the same city. There's no way to cross directly from Staten Island to Brooklyn without paying; no way to cross from Queens to the Bronx without paying; and if there was some way for the MTA to slap a toll on people driving between Brooklyn and Queens, which are adjacent to each other, you can be sure they would.

We're angry alright.

Tuesday, March 08, 2005
Partying like it's 1999... spending like it's ....

A solid look at the fiscal situation New York State finds itself in -- due to the near malfeasance of our spineless elected officials.


Governor George E. Pataki says the last four years have been “the worst … since the Great Depression”[1] for New York’s finances.

You wouldn’t know it from looking at the state budget, though. Since the end of the 2001 fiscal year[2], state funds[3] spending has risen 18 percent. That’s a growth rate of one and a half times inflation – despite the fiscal fallout from a national recession, a nasty Wall Street bear market and the destruction of the World Trade Center.

In fact, as explained below, New York State has exerted somewhat less fiscal discipline in the 2001-05 boom-and-bust cycle than during a comparable period in the early 1990s.

Recent state spending trends underscore the high stakes in Albany’s fiscal 2006 budget negotiations. Despite the widespread media focus on “cuts,” especially in health care, Pataki’s proposal calls for net state funds spending growth of 5.5 percent – twice the rate of inflation. If the Legislature is allowed to make significant additions and restorations to the Governor’s budget, New York will be hobbled by state budget shortfalls for years to come.

Déjà vu all over again

Notwithstanding the governor’s frequent allusions to the 1930s, the state’s latest economic and fiscal travails aren’t completely unprecedented. Indeed, there are striking similarities between the early 2000s and the early 1990s. During both periods:

  • New York experienced an economic recession more severe than the national average.
  • Medicaid costs skyrocketed.
  • New York’s budget gaps were closed in large part with tax hikes, increased borrowing and fiscal gimmicks.
  • The Legislature set new records for tardiness in adopting a state budget.

No two economic cycles are exactly alike, of course. For example, the state lost more private sector jobs during the early 1990s, while the revenue losses were much greater after the 2001 recession.

Read the entire article here.

Thursday, March 03, 2005
40 Minutes To Wal-Mart

At last weekend's Angry New Yorker Roundtable the topic of Wal-Mart in Queens was on the agenda. Reasoned perspectives on both sides were presented, and surprisingly no consensus developed by the time we had to leave. However, Steve Malanga, whose opinion we value and trust, convinced a number of our participants today that allowing Wal-Mart in would be a positive. And, as usual, our Roundtable added ideas to the mix. For instance, we thought it'd be possible to give Wal-Mart a "trial period" of several years at a smaller footprint size and contingent on a lease preventing them from certain selling items. That way both sides would be allayed.
True to form, Congressman Weiner, District 9, has strongly opposed Wal-Mart coming to Queens , spouting the usual populist rhethoric. (See Weiner Says No To Queens Wal-Mart Store, The Wave, Dec. 16, 2004, available here). On the other hand, here's the Post op-ed that convinced a number of our roundtablers:


?I?N the eyes of New York's pols, stopping Wal-Mart was supposed to be a victory for small stores in Queens and for the city's working people who were about to be "exploited" by the big, bad retailer. But the real victor was Nassau County, which like other suburban locales has benefited hugely over the years from the city's efforts to keep out big-box stores — an effort that started long before Wal-Mart came on the scene.

To understand just how big a winner Nassau is, consider a few statistics:

Queens' residents produce slightly more in aggregate personal income every year than the residents of next-door Nassau County — nearly $65 billion vs. almost $64 billion, according to the state Labor Department.

Given those numbers, you would suppose that the two counties would have similar levels of retail employment and spending. Sorry, you'd be wrong.

The last federal economic census, taken in the late 1990s, estimated that Nassau has about double the annual retail-sales volume as Queens. Not surprisingly, Nassau boasts a much bigger, thriving retail sector. It has 82,000 retail jobs in about 6,200 stores, paying about $2.3 billion annually in wages, according to the Bureau of Labor Statistics census of employment and wages.

Queens, by contrast, has only 49,000 retail jobs — a whopping 40 percent fewer than Nassau — and only about 5,700 stores, paying a total of $1.2 billion a year in wages. It's no mystery why these vast differences exist despite the potential size of the Queens marketplace. For decades, New Yorkers have been leaving the city to shop because city officials keep at bay the stores where their constituents want to shop in. In 1993, when the big-box controversy first erupted, the polling firm Leo J. Shapiro and Associates asked New Yorkers about their shopping patterns and found that more than half of city residents leave the city to shop regularly, often visiting stores they can't find in Gotham. Obviously, the city's big box policies haven't done much to protect Queens' small retailers, as the recent stats on jobs and sales in Queens and Nassau demonstrate.

Of course, the big loser in all of this is the city's taxpayers. The extra sales-tax income that Queens alone forfeits to Nassau County might amount to about $250 million a year — to say nothing of lost property-tax revenues when sites sit empty while big-box stores build energetically in Nassau or Westchester or New Jersey.

Steven Malanga is a contributing editor of the Manhattan Institute's City Journal.

Wednesday, March 02, 2005
The Supreme Court Does It Again...

The Supreme Court yesterday changed the laws of nearly 20 states by ruling in Roper v. Simons (available here PDF) that the death penalty for anyone less than 18 years at the time of the crime was a violation of the U.S. constitutional 8th Amendment. My opinion of J. Kennedy has changed dramatically in the past three years. Somewhere in the last two years he's gone squishy, at least based on the broad (queue John Williams music) tautological language he's taken to using in his opinions, such as:

These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.
Sounds great. Brings a patriotic tear to one's eye. But what does that mean again when it comes to the death penalty for those younger than 18? Those supporting Kennedy's viewpoint frame the issue along the lines of the following:

Can you believe Republicans defend the idea that states should kill children, in the name of justice? If ever there was proof that we need help. And the Republicans talk about values. Feh. Values to kill children.
Knee-jerkers like this miss the issue completely, looking, as they do, at the case not from the standpoint of law, but the "children." Let's look then, shall we? What the 17-year old Christopher Simmons "child" in the case did turns one stomach. He planned a murder a head of time; bragged that since he was a minor nothing would happen (though he didn't know Missouri allowed the death penalty for 17-year olds); broke into Mrs. Crook's home, kidnapped her; bound and gagged her; and drove her to a railroad bridge where he threw her into the Meramec river below where she drowned. Sounds like something the "children" you know would do? I sure hope not.

While I certainly don't think teenagers should be executed willy-nilly, those who embraced Kennedy's majority opinion (joined by Breyer - good guy, but misguided as to int'l law, Stevens - Mr. Standing, and Souter & Ginsberg - the Court's Salieri's) view the Court as a broad court of equity. It's really not. Nor should it be.

In this case, I believe the death penalty should be an option left to the states and the jury system to impose - rather than removed entirely from the democratic process by the Court ruling it categorically unconstitutional. Why? Because there are, as O'Connor and Scalia noted, instances of depravity committed by those younger than 18, who possess the maturity of thought and mind, that it is neither cruel, nor unusual punishment to impose the death penalty. Further, J. O'Connor and J. Scalia's dissent pegged the issue correctly and, in Scalia's case, devastating. J. O'Connor notes:

The Court's decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. Neither the objective evidence of contemporary societal values, nor the Court's moral proportionality analysis, nor the two in tandem suffice to justify this ruling.
While Scalia unloads on the majority with both barrels:

In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary . . . ha[s] neither FORCE nor WILL but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." Id., at 471. Bound down, indeed. What a mockery today?s opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years -- not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed.
It's another unfortunate decision from the nation's highest federal court.

Scalia's dissent is vintage Scalia: fierce and absolutely correct. Critics call Scalia harsh, an ideologue, and an extremist. Far from it. Scalia can definitely be blunt, but he's a fierce believer that the Court's powers are fundamentally limited, and that as many decisions as possible should be left to the two elected branches of government in order to best preserve democracy. I agree. An alternative would be to allow the Supreme Court to issue non-precedential opinions -- deciding a case without binding future parties as to the decision. It's a thought to keep in mind.

UPDATE: Prof. Eugene Volokh, of The Volokh Conspiracy and UCLA Law School, and I fundamentally agree on the Roper decision, as he notes:

I think the Supreme Court's decision holding that the death penalty may not be imposed on killers who were 16 or 17 at the time of their crimes was unsound, for the reasons that Orin has noted here, and that Justice Scalia noted in dissent. I'm not sure what I think of the execution of such killers as a policy matter, but I think Justice Scalia is right that this is not unconstitutional.
UPDATE II: Another interesting review of the Roper decision, again from the Volokh Conspiracy, but attacking J. Kennedy's view that the deterrence factor of the death penalty has little impact on teenagers, notes:
In other words, Simmons sought to induce other juveniles to participate in
his crimes by telling them they need not fear criminal prosecution. This
argument would have been unnecessary were his friends not deterred, at least
in part, by such threats. From this proposition it is but a small step to
assume that the severity of the criminal sanction -- death as opposed to a
set jail term -- could have some deterrent effect on the margin. This does
not mean that capital punishment for juveniles is a good idea, but it does
suggest that Justice Kennedy may have been a bit too quick to dismiss the
potential for deterrence. Indeed, his own recital of the facts should have
raised a red flag on this point.

Read the entire post here.

UPDATE III: John Hindracker, of Powerline, has a guest essay at The Weekly Standard on the Roper decision entitled A Government of Men, available here.

Tuesday, March 01, 2005
The Mayor Knuckles Under - The Moral - I Scream, You Scream, We All Scream for Money

Look, we're sympathetic to the families flooded out in Astoria by a recent watermain break. It's a nightmare come true to have your apartment flooded. And It seems that applying standard tort law would conceivably result in a favorable decision for them on some level -- but only if there was in fact negligence involved.
The trouble we have is the Mayor, without any definitive facts, concluded on his own that the City's Department of Environmental Protection is at fault, and that while a contractor may have been involved, he none-the-less ordered the controller to shell out tax-payer largesse that could total "millions of dollars" to the families. See City to pay for Damage Incurred in Astoria Water Main Break,, Feb. 28, 2005, available here.

Are we the only ones who find this strange? The moral seems to be "yell and scream" and you get the juice, though we guess this is simply a modern variant on the timeless maxim "the squeaky wheel gets the oil." Except the oil is provided by the taxpayer, as always. Hey, families, a word of advice -- start shopping for water damage insurance!

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